Divorce Law Specialist

Month: Feb 2014

This article could be considered in conjunction with the comments I have made in the article entitled “All Catholics are Terrorists”.

It was 1989. I had completed my dissertation for my Honours on my LLB course. The paper was entitled “is unjust law, law?”. I will not bore you with the jurisprudence of the points made in that tome. What I will do is indulge myself a little to tell you a little of what my paper concluded.

In that paper, I reminded my readers (probably only my mum at the time and probably now, not a whole lot more!) that we (the British) were at war with the IRA. Some called it The Troubles (what an amazing euphemism – if only it were not so sad) and some called it a conflict. I am sure that there are legal implications of what that whole episode was named but whatever it was called, it was a bloody conflict, with serious, frequent and fatal blood shed on both sides of the fence.

Also around that time, for a bit more background information, we enacted the Prevention of Terrorism Act 1988. At the time of its enactment, the Houses of Parliament were told, assured, convinced, that the Act would only remain in place for 14 WEEKS. Ten years later, it was supplemented (or supplanted depending on your political persuasion) by the Prevention of Terrorism Act 1998.

At that time, the British Government were riled, I was at that time serving in the Territorial Army and very much on the “side” of the British. We wanted to sort out the murdering Irish b*****ds.

The problem for me as a person was that I was also in the final throes of my law degree. I believed then and I believe now in the Rule of Law, of Justice, of right and wrong. (Doesn’t everybody?) Fiat Justitia Ruat Coelum MEANS something. Without that, as a Solicitor (as I am now) would be just a job, a deluded food processor in a meat factory. Bad law is bad law. It should not happen and should not be allowed to happen.

Back to my dissertation – in amongst other things, I wrote in my work that the Guildford Four and Birmingham Six would and should be released. My predictions came true. Sadly, I cannot take credit for being a Mystic Meg of the legal world (oh, if only) and neither can I take any credit for being a legal genius. It was obvious that this would happen, frankly.

Again, I will not bore you with WHY they were likely to be acquitted but I will say this: The politicians at that time, on both sides of the House, meddled with the law to put right things “right” that are politically unsatisfactory at the time. But politically unsatisfactory to who? To the politicians of course. Things will go wrong and often do, when politicians meddle in the legal system to fix political problems. Miscarriages of justice will occur and worse than that, if such a thing could be contemplated, is that or rights as citizens are made a tiny bit weaker because of it.

You may have forgotten about the Prevention of Terrorism Acts, you may have forgotten about the IRA terrorists and you may have forgotten about the fear that they put in the daily lives of the British Population and the countless, pointless loss of live even here on the mainland.

You may have even forgotten that many men and a woman were incarcerated for what the law says they did not do – for over 30 years in total. 30 wasted years of their lives that we cannot give back to them. 30 political years of vote wins. And of course that would not happen now – not now, with hindsight or with the advances in our legal morality. Surely not.

I hope not.

Think about the vile murdering Muslim terrorists now. None of them charged with any offence, despite them being incarcerated in Gitmo for god only knows how long. The incongruity of this paradox hurts my head. On the one hand, we “know” that they are involved in terrorism; we know they make our streets unsafe and put at risk the lives of our children.

But to keep them incarcerated without charge is anathema to any right minded person’s moral and legal code, let alone the established legal code of a developed civilised democratic nation. That utter unbelievable incredible faux pas not only destroyed the credibility of the USA as the bastion of good and the defender of Right, but fuelled the fire of terrorism to a magnitude never seen before as far as I am aware. That is bad news. The USA involved politics in the Rule of Law and frankly fucked up big time.

We, the British (well English and Welsh to be precise) are not that far behind. We have been involved in illegal rendition flights, sending BRITISH CITIZENS to third party countries that either are despotic or rub shoulders with them, knowing that they will be tortured. British security forces have been in the same building or room as British Citizens who have been tortured not by our forces (thank god) but by those whose countries they use, thereby creating a deniability of torture at our hands.

The story goes on and on. Let me put it into stark relief what happens when politicians are trusted to mess with the law if you are still not yet convinced. We are now talking about holding specialist trials. Trials where all the qualified personnel, the lawyers for both the defence and the prosecution, the Judges, the whole lot, have security clearance as the information that may be put in these hearings is so sensitive. I do understand the need to maintain secrecy to protect our working methods, our fight against terrorism, our need to protect the personnel and so on. But at what price?

The defence only gets the “gist” (I kid you not) of the case against the accused. There will be parts where even the defence will not be allowed to hear and the prosecution’s case that is put to the Judge (obviously security cleared) without the defence even present.

This is utter madness.

I know we are all pissed off with terrorism and 9/11 and 7/7 more to the point for us was a disgusting act of violence that should never again be allowed to happen.

But really? Not even knowing what the case is against you before you are potentially fully convicted of an offence that you do not fully get to hear about and leaving you in prison for life. LIFE.

I am ashamed that in 20 years’ time, our children will look back on us and wonder what on earth we were thinking to allow this to happen. Just like twenty-somethings now seem to question what the bloody hell we were doing when the PTA came into force.

The comments in this article are not intended to constitute legal advice. As ever, in all the articles written, it is imperative that you take independent legal advice before acting on any of the information contained herein.

Shak Inayat
Solicitor
0207 183 2898

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Apologies first: I have talked about heterosexual couples in this article. The same applies to same sex couples. I have also given an example of the male partner being the one who is the main breadwinner and the girlfriend being the stay at home mum. Clearly, that could be the other way round and of course, it could be a same sex partner that is the stay at home parent as their same sex partner goes out to work.

Disclaimer Second: I have tried to express an opinion about the fallacy of common law husband and wife. In doing so, I have touched upon a complex area of law known as Trusts. I have not gone into detail about Trusts and that means that some of the information contained in this article is not strictly accurate but one possible scenario that could arise. As per the main disclaimer at the end of this article, do not act on anything you see written in here but take independent legal advice from a qualified specialist family Solicitor. Not doing so, especially in this case of all cases, you do so at your own peril.

It never ceases to amaze me how often I hear people, old and young, rich and poor talk about their partner being their common law spouse. If anything, I seem to hear women refer to that concept more than men. I do not know why that it – but anecdotally, I would say that twice as often in my legal practice, I hear women say that they are the common law wife of a man that they have been cohabiting with for some time, rather than men referring to it. Why that is the case is not particularly relevant to this article but interesting nonetheless.

I recall a particular client who came to see me not a long time ago (and case law is littered with similar stories sadly) where a woman had been living with her partner for many a year and they had two teenage children together. She had changed her name by deed and as far as BOTH of them were concerned, they were common law husband and wife. Their families thought of them as a “married” couple as did their friends and all who knew them. They felt married.

Sadly, their relationship broke down and this is when the problems arose.

Let me state the obvious from the outset: to be married, two people, whether heterosexual or same sex, MUST go through a formal legal ceremony, ie a wedding, in a Register Office, a designated religious building (such as a Church) or more commonly nowadays, an approved other building, such as a country manor etc. Without that formal ceremony, the couple are not and never will be, married.

Many people do not worry about such “minor trivialities” – but as a Solicitor dealing with relationship breakdowns day in day out – that information is of crucial importance.

If I got a pound for each time I have had a client say that they are “married” only to find out that what they meant was that were common law husband and wife – I am sure I could retire.

The fact of the matter is that the concept of common law husband and wife has not existed in England and Wales since the 1700’s, 1763 from memory but don’t quote me on that. A few decades will not make the blindest bit of difference I bet. Let me say that again just in case you thought you misread what I just said – the concept of common law husband and wife has not existed in England and Wales since the 1700’s – yes, several hundred years ago. Quite why people still hold on to this dangerous myth of the common law spouse is beyond me.

I do not even know where this folklore starts – people just seem to know – like it is in the genes.

Back to the client that I mentioned earlier, they felt married, the believed they were married but they had not gone through a marriage ceremony. So now you and I know that in fact they were not married. You and I now know that they were not common law husband and wife as there is no such thing.

So what? Well, not untypically, the male partner (I will not call him a husband, so I will call him a boyfriend, just to drill the point home), he went to work so he was the breadwinner, so to speak. She stayed at home and looked after the kids.

He had the savings in his account – the account that he had before they met but they just kept using – because it did not seem to be a big deal. She had his passbook and even knew the online pin number and password and he did not. (Sounds like my domestic circumstances too).

Crucially, he had the home in his name as the mortgage was in his name, but they both considered it their home and the kids home.

I am now simplifying matters because there are circumstances where in such cases the female partner (I will not call her a wife, so I will call her girlfriend to remain consistent) does have an interest in property but it can be expensive to prove that the girlfriend does have rights and success can never be guaranteed.

In this case however, the client that I saw had no such rights and no way of proving that she out to have an interest in the property. Even though she had done everything to raise the kids, which in my mind and more importantly, in the courts, mind is the equivalent as going out and earning a wage and thus being a joint contributor to the outgoings on the property etc.

The net effect was that she was not his wife and thus not entitled to matrimonial relief

She was not his common law wife as there is no such thing in England and Wales

So she was just a “mere” girlfriend.

She was not entitled to any of the value of the home – not a dime.

In my mind and I am sure in most people’s mind, that was a very harsh outcome for the girlfriend, especially after a long relationship. But legally, it was the right outcome. That is what the law says and until the law changes that is how it will be. The law in these types of “common law” spouse cases are not concerned with fairness but concerned with legal (and equitable) rights. You are either entitled or you are not.

Let that be a salutary lesson, if you are the common law wife, you are no more than a mere girlfriend, and if you are the common law husband, they are no more than a mere boyfriend. The law will treat you as such. So, if you are in such a situation, fix it now – especially whilst your relationship is working – as both of you will want to be fair to each other.

In my case above mentioned, the boyfriend could have approached this matter as a gentleman and said, well I thought she was entitled, so I will give her that fair share. He didn’t. What he said was, not unsurprisingly, was that he would pay out only what she was entitled to in law. Which he now knew was NIL. He made a windfall and caused her untold misery, distress and financial hardship. She was understandably devastated.

If you are in a relationship with another person and have not formally regulated your position, then for heaven’s sake go and see a Solicitor to ensure that you are both protected or there will be more than tears later.

The comments in this article are not intended to constitute legal advice. As ever, in all the articles written, it is imperative that you take independent legal advice before acting on any of the information contained herein.

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Further to my previous blog on this issue, surprise surprise; the Supreme Court will hear an appeal by the wife in the case of Vince v Wyatt [2013] EWCA Civ 495.

Just when you thought this problem had gone to bed – it rears it’s head again.

You myat recall from my earlier blog that in May 2013 the Court of Appeal allowed the husband’s appeal against the dismissal of his application to strike out his former wife’s claim for a financial remedy, which she issued some 18 years after the parties were divorced.

The Court also held that an A v A order should not have been made against the husband requiring him to pay a total of £125,000 to fund his ex-wife’s legal costs of bringing the claim against him. In the High Court Mr Vince had been ordered to pay £125,000 directly to Ms Wyatt’s solicitors.
There are six grounds of appeal in respect of each of which permission to appeal has been granted. The constitution of the Appellate Committee which granted permission was Baroness Hale, Lord Sumption and Lord Carnwath.

The essential points on appeal are:

Whether or not it is permissible to strike out a party’s Form A financial remedy application without the merits of such party’s claim being considered by a court of trial; and

What is the legal and beneficial status of monies paid under the A v A jurisdiction?

The appeal before the Supreme Court is likely to be heard in December 2014.

Watch this space!

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Making a Will is a hugely important step in our lives, which many of us put off. This can be for a number of reasons, such as cost, thinking you are too young to need one or thinking that you have nothing of value to leave in a Will.

However, a Will actually does much more than just distributing your belongings when you die and there are many reasons why you should make a Will, regardless of your financial position.

Dying without a Will in place means the rules of intestacy apply and your assets will be distributed as guided by the law, meaning the people who you want to inherit your assets, may not.

If you live with your partner but have never married and leave no Will, your partner will not get anything from your estate. This could leave your partner in serious financial trouble.

You need to ensure that your wishes for your children are put in writing to have the best chances of them being carried out.

These are a few of the many good reasons why you should make a Will, but why shouldn’t you ‘Do It Yourself’ with a DIY Will rather than use a solicitor?

Firstly, this is a very important document which can mean the difference between financial security and serious financial issues. If you make even a small mistake in the preparation of your Will, this could render it invalid, meaning that the person or people you really wanted to benefit from your estate are left completely high and dry.

Although cost may be a factor in many people’s choice to complete a DIY Will, the decision to do this can have very serious implications.

Some of the most common errors on a DIY Will are:

Not signed

Not witnessed correctly

Not telling anyone it is there, or where to find it

Not updating it regularly

Witnessed by a beneficiary

Making amendments without a codicil

By using a specialist solicitor to draft your Will, you can protect your wishes but also protect your loved ones from any mistakes you may make if you drafted your Will yourself, so you will have complete peace of mind that your wishes are carried out for you once you die.

For more information about this article or any aspect of our Wills, Probate & Trusts services (including Care home fees recovery and powers of attorney), please call us on 0333 34 44 54 8 and we will be delighted to help you (there is no charge for initial telephone discussions).

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

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Many people in the UK think that pre-nuptial agreements are for famous people and for the very rich, but they are being used more and more in the UK now.

The slightly odd thing about a pre-nuptial agreement, more commonly known as a pre-nup, is, that they are not currently legally binding in England and Wales and as a result, not exactly enforceable either.

So you may think that a pre-nup agreement is just a waste of time, but although not legally binding, they do hold some weight in court.

There are a number of different takes on a pre-nup, with post-nups and pre or post-civil partnership agreements. The only difference is whether the agreement refers to a marriage or a civil partnership and whether the agreement is put into place before or after the ceremony.

Either way, the effect is the same. What happens in the event of a divorce or dissolution of civil partnership is that the court will decide how they will split the couple’s assets. The court has a great deal of scope to make decisions based on a number of factors and if there is a pre-nup in place, this can be taken into account by the court during this process.

At the current time, following a decision in the Supreme Court in 2010 in the case of Radmacher v Granatino, any pre-nup that was entered into freely by both parties and with a full understanding of its implications, should be enforced by the court, as long as it was not unfair to do so.

Prior to the Radmacher v Granatino case, the UK court system said that a pre-nup was invalid because the person who obtained it knew that the marriage was going to break down and that was the sole reason for the pre-nup.

So the strange position in the UK is that whilst a pre-nup is not a legal document, it definitely does carry weight in court in the event of a marriage breakdown, as long as it has been prepared properly and that both parties are in agreement.

This may be set to change though, with the announcement by the Law Commission that pre-nups will be made legally enforceable by creating a new statute in the coming years. This can only help with the effectiveness of current pre-nups too.

Before you get married or enter into a civil partnership, it may be worth discussing the option of a pre-nup with your partner and if you both agree, speak to a solicitor to draw one up.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.